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tl;dr Two big questions: 1. is the use of copyright-protected works to train AI models fair use. Answer: probably, we don't know for sure. 2. can you have co

tl;dr Two big questions: 1. is the use of copyright-protected works to train AI models fair use. Answer: probably, we don't know for sure. 2. can you have copyright on the output of an AI? Answer: probably not, unless there is sufficient human creativity

Dalewyn 4y ago
>1. is the use of copyright-protected works to train AI models fair use. >Answer: probably, we don't know for sure. It's worth remembering Wikipedia has everything to gain by being allowed to handwave legalities away under "Fair Use". While their thoughts might be interesting to hear, we shouldn't forget they are strongly biased concerning the subject matter.
- pxoe 4y ago
  in their case, 'fair use' seems more fair - stuff like images, if it's a copyrighted work, are featured as a small resolution thumbnail. meanwhile, AI services (image generating ones) grab a high resolution copy off the internet (which could be a ding in itself, and also a ding for other "training data" collections which "only post links" (piratebay, anyone?), create a derivative (a model) off of that copy, and then create even more derivatives off of a model (which is an already legally questionable item in itself) in form of model output (which can be as high res as one wants). text based AI services also do some questionable sourcing of material, also create a derivative, a model, and then subsequent output. and the commercialization is more explicit, "this is a service/product/app, pay us for this product, pay us for compute, etc." all of these things steer AI services further and further away from "fair use". AI services truly do not have a strong foothold in trying to pass their stuff as "fair use", let alone trying to argue that their "use" is "fairer" than, say, wikipedia's.
- crote 4y ago
  Wikipedia also has something to gain by AI not falling under Fair Use. Wikipedia is most likely a substantial source of ChatGPT's training data. Considering Wikipedia primarily falls under the CC-BY-SA license, if it isn't fair use it could potentially make parts of ChatGPT - and potentially even its output - fall under CC-BY-SA too.
jillesvangurp 4y ago
Related to both: how would you tell the difference? More importantly, how would you prove that in a court. When it comes to copyright infringements, the burden of proof is on the copyright holder. I might claim the work of an AI as my own without informing anyone. And then when somebody copies my work I might sue them. How would they prove my work is not my own but created by an AI? If you fail to do that, a judge is going to rule in my favor. They'd have to. Or when an AI supposedly infringes on a copyrighted work, who do you drag into court for that (the AI, it's developers, or the user?) and what's your argumentation going to be? You have to prove that the work is clearly yours and not fair use (e.g. a snippet, fragment, or a loose resemblance). And then you have to prove illegal distribution of that work that goes beyond fair use. This is where the whole thing will fall apart IMHO. I'm sure the legal debates will drag out a long time but you can kind of see where this is going. The cat is out of the bag, and the volume of cases will soon be such that it will be hard to stay on top of them. While there are going to be a multitude of people who feel vaguely cheated, they might not have much of a solid basis for starting legal cases. A few might try but that might just nudge judges to put a stop to those cases with some tactical rulings. Enough people have attempted to abuse copyright for all sorts of reasons ever since the whole notion was formalized that any drastic changes in the way copyright works are both impractical and unlikely to survive a lot of scrutiny if/when that gets escalated to the supreme court. A lot of amateur lawyers with very fuzzy notions about copyright, the whole notion of property, ownership, intellectual property etc. are not going to really going to be able to change that. And of course copyright law is not just a US thing. Other countries have copyright laws too and there are treaties and trade agreements between countries. All kind of hint at a likely outcome: unless an AI is producing verbatim copies of something copyrighted, it likely is simply fair use, whether people like that or not. And when people copy work produced by an AI, it's up to them to ensure that the work is not copyrighted. And up to the copyright holder to go after them. The AI itself cannot be sued. And a neural network bears no resemblance to any copyrighted work whatsoever; so it's hard to argue that the creators of those can be a party in any such cases. I'm sure people will try. But I'm skeptical of those people getting very far. Creating some kind of exception for AIs in copyright law is going to be very hard and impractical. Getting international agreement on that even harder. At best it will take very long for anything to happen. By which time there will be so many AIs that outlawing them is not going to be practical or popular.
mikro2nd 4y ago
On the first point, do any law geeks know whether it would be possible to craft a new CC license along the lines of "CC-BY-NOAI" although, given that companies profit from their LLMs, I'd have thought a NoCommercial CC license ought to cover it, but evidently not, under US law. How does any of this help me, a non-US person?
marginalia_nu 4y ago
Also worth noting that Fair Use is almost unique to American law. In much of the world, the doctrine is not recognized. Some jurisdictions offer similar provisions, but with limitations against commercial use, or selective exemption in for example education. Although enforcement seems to be fairly selective. Google and similar services that hinge their entire business model on fair use seems to be permitted to operate even outside of US jurisdiction.
jhanschoo 4y ago
Regarding 2, I wonder if we may start to see AI services injecting the occasional human-constructed answer at random to ward against unauthorized distribution; just like how some map makers in the past included the occasional fictional feature to legally guard against unauthorized copying.

Dalewyn 4y ago

>1. is the use of copyright-protected works to train AI models fair use. >Answer: probably, we don't know for sure. It's worth remembering Wikipedia has everything to gain by being allowed to handwave legalities away under "Fair Use". While their thoughts might be interesting to hear, we shouldn't forget they are strongly biased concerning the subject matter.

pxoe 4y ago
in their case, 'fair use' seems more fair - stuff like images, if it's a copyrighted work, are featured as a small resolution thumbnail. meanwhile, AI services (image generating ones) grab a high resolution copy off the internet (which could be a ding in itself, and also a ding for other "training data" collections which "only post links" (piratebay, anyone?), create a derivative (a model) off of that copy, and then create even more derivatives off of a model (which is an already legally questionable item in itself) in form of model output (which can be as high res as one wants). text based AI services also do some questionable sourcing of material, also create a derivative, a model, and then subsequent output. and the commercialization is more explicit, "this is a service/product/app, pay us for this product, pay us for compute, etc." all of these things steer AI services further and further away from "fair use". AI services truly do not have a strong foothold in trying to pass their stuff as "fair use", let alone trying to argue that their "use" is "fairer" than, say, wikipedia's.
crote 4y ago
Wikipedia also has something to gain by AI not falling under Fair Use. Wikipedia is most likely a substantial source of ChatGPT's training data. Considering Wikipedia primarily falls under the CC-BY-SA license, if it isn't fair use it could potentially make parts of ChatGPT - and potentially even its output - fall under CC-BY-SA too.

jillesvangurp 4y ago

Related to both: how would you tell the difference? More importantly, how would you prove that in a court. When it comes to copyright infringements, the burden of proof is on the copyright holder. I might claim the work of an AI as my own without informing anyone. And then when somebody copies my work I might sue them. How would they prove my work is not my own but created by an AI? If you fail to do that, a judge is going to rule in my favor. They'd have to. Or when an AI supposedly infringes on a copyrighted work, who do you drag into court for that (the AI, it's developers, or the user?) and what's your argumentation going to be? You have to prove that the work is clearly yours and not fair use (e.g. a snippet, fragment, or a loose resemblance). And then you have to prove illegal distribution of that work that goes beyond fair use. This is where the whole thing will fall apart IMHO. I'm sure the legal debates will drag out a long time but you can kind of see where this is going. The cat is out of the bag, and the volume of cases will soon be such that it will be hard to stay on top of them. While there are going to be a multitude of people who feel vaguely cheated, they might not have much of a solid basis for starting legal cases. A few might try but that might just nudge judges to put a stop to those cases with some tactical rulings. Enough people have attempted to abuse copyright for all sorts of reasons ever since the whole notion was formalized that any drastic changes in the way copyright works are both impractical and unlikely to survive a lot of scrutiny if/when that gets escalated to the supreme court. A lot of amateur lawyers with very fuzzy notions about copyright, the whole notion of property, ownership, intellectual property etc. are not going to really going to be able to change that. And of course copyright law is not just a US thing. Other countries have copyright laws too and there are treaties and trade agreements between countries. All kind of hint at a likely outcome: unless an AI is producing verbatim copies of something copyrighted, it likely is simply fair use, whether people like that or not. And when people copy work produced by an AI, it's up to them to ensure that the work is not copyrighted. And up to the copyright holder to go after them. The AI itself cannot be sued. And a neural network bears no resemblance to any copyrighted work whatsoever; so it's hard to argue that the creators of those can be a party in any such cases. I'm sure people will try. But I'm skeptical of those people getting very far. Creating some kind of exception for AIs in copyright law is going to be very hard and impractical. Getting international agreement on that even harder. At best it will take very long for anything to happen. By which time there will be so many AIs that outlawing them is not going to be practical or popular.

mikro2nd 4y ago

On the first point, do any law geeks know whether it would be possible to craft a new CC license along the lines of "CC-BY-NOAI" although, given that companies profit from their LLMs, I'd have thought a NoCommercial CC license ought to cover it, but evidently not, under US law. How does any of this help me, a non-US person?

marginalia_nu 4y ago

Also worth noting that Fair Use is almost unique to American law. In much of the world, the doctrine is not recognized. Some jurisdictions offer similar provisions, but with limitations against commercial use, or selective exemption in for example education. Although enforcement seems to be fairly selective. Google and similar services that hinge their entire business model on fair use seems to be permitted to operate even outside of US jurisdiction.

jhanschoo 4y ago

Regarding 2, I wonder if we may start to see AI services injecting the occasional human-constructed answer at random to ward against unauthorized distribution; just like how some map makers in the past included the occasional fictional feature to legally guard against unauthorized copying.